Criminal law and procedure Sentencing Sexual penetration of applicant's de facto child 8 years' imprisonment imposed Whether sentence manifestly excessive Whether sufficient weight given to applicant's favourable antecedents and other allegedly mitigating circumstances Turns on own facts
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : COURT OF CRIMINAL APPEAL CITATION : DAUPHIN -v- THE QUEEN [2002] WASCA 104 CORAM : ANDERSON J
STEYTLER J McKECHNIE J
HEARD : 3 APRIL 2002 DELIVERED : 7 MAY 2002 FILE NO/S : CCA 54 of 2002 BETWEEN : DALE ALAN DAUPHIN
Applicant
AND
THE QUEEN Respondent
Catchwords:
Criminal law and procedure - Sentencing - Sexual penetration of applicant's de facto child - 8 years' imprisonment imposed - Whether sentence manifestly excessive - Whether sufficient weight given to applicant's favourable antecedents and other allegedly mitigating circumstances - Turns on own facts
Legislation:
Criminal Code (WA), s 320(2), s 329(2)
Result:
Application for leave to appeal refused
(Page 2)
Category: D
Representation:
Counsel:
Applicant : Ms K…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
Dauphin v The Queen [2002] WASCA 104
Case
[2002] WASCA 104
Decision Date
CaseChat Overview and Summary
In the case of Dauphin v The Queen, the applicant appealed against the sentence imposed by the County Court, arguing that the sentence of eight years' imprisonment was manifestly excessive. The applicant had been convicted of sexually penetrating his de facto child. The Court of Appeal considered whether the primary judge had given sufficient weight to the applicant's favourable antecedents and other mitigating circumstances, and whether the sentence was manifestly excessive. The applicant argued that the sentence was harsh and that the trial judge had failed to adequately consider the mitigating factors in arriving at the sentence. The Crown submitted that the sentence was appropriate and reflected the seriousness of the offence.
The court considered the relevant principles of sentencing, noting that each case must be assessed on its own facts and that the sentence must be proportionate to the seriousness of the offence. The court noted that the applicant had a clean criminal record and had shown remorse, but also considered the gravity of the offence and the need for general deterrence. The court concluded that the sentence was within the range of reasonable responses and that the primary judge had given appropriate weight to the mitigating factors. The court rejected the argument that the sentence was manifestly excessive and found that the primary judge had exercised their discretion appropriately in imposing the sentence.